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Canadian Library Association (CLA)

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

Documents received have been posted in the official
language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

Submission from Canadian Library Association (CLA) received on September 14, 2001 via e-mail

Canadian Library Association Response to the Consultation Paper on Digital Copyright Issues

September 15, 2001

328 Frank Street
Ottawa, Ontario
K2P 0X8

www.cla.ca

The Canadian Library Association is the national English-language association
that represents those who work in and support the estimated 21,000 libraries
located in every community in Canada. Its role is to assist libraries as they
support Canadian citizens to access and use information for education, lifelong
learning and economic development.

This response represents the views of the Canadian Library Association (CLA) on
A Framework for Copyright Reform as well as on the Consultation Paper
on Digital Copyright Issues released by Industry Canada and the Department
of Canadian Heritage in June 2001.

In substance, a number of the observations made in this response reflect
recommendations put forward in the Discussion Paper on Digital Copyright
Issues that was submitted to the Government by The Copyright Forum earlier
in June. As a member of The Copyright Forum, the Canadian Library Association
has taken the opportunity to underscore recommendations made in the
Discussion Paper that are relevant to the issues raised in the
Consultation Paper, and to elaborate on observations made earlier in the
context of specific proposals put forward in the Consultation Paper.

1. Balance
Both A Framework for Copyright Reform and the Consultation Paper on
Digital Copyright Issues emphasise the importance of ensuring an
appropriate balance between protection for original content and access to that
content in the new technological environment. As an instrument of public
policy, the CopyrightAct has two primary objectives: to
encourage the creation and dissemination of original works, and to promote
access to those works for the benefit of Canadian society as a whole. The
public policy objectives reflected in the Act focus in part on economic growth
and in part on cultural and social development.

It is essential that the copyright reform process being launched by the
Government respect the underlying principle of balance between the protection
provided to the creators of original content and the guarantee of reasonable
access by the public that is embodied the Copyright Act. Every effort
must be made to ensure that the process itself is designed to maintain the
level of balance currently reflected in the Act as adjustments are made in
response to the challenges posed by the introduction of new technologies.

From the perspective of libraries and the users they serve, it would be
unacceptable if the copyright reform process were to disrupt the balance by
moving ahead on introducing new and enhanced levels of protection for copyright
owners without addressing at the same time the impacts on user access. In
order to ensure balance in the process, every proposal under consideration that
would provide copyright owners with a new right or redress mechanism must
consider at the same time the appropriateness of limitations and exceptions
that may be necessary to ensure reasonable access.

2. Priorities
The process set out in A Framework for Copyright Reform involves a
staged approach to the review of issues and the development of proposals for
legislative amendments. In the interests of timeliness and efficiency, the
departments plan to group issues into manageable packages and to
draft bills that are relatively narrow in focus. The Ministerial report
mandated by section 92 of the Act that is to be tabled by September 2002 will
outline a proposed agenda for copyright reform. That agenda, it is be
presumed, will be shaped in large part by the course of consultations conducted
over the next twelve months.

Although more than a dozen issues have been identified as candidates for
inclusion on the Governments agenda for copyright reform, two have been
singled out for immediate attention: a package of so-called
digital issues, and Internet retransmission of broadcast programs.
Assuming the release of consultation papers on those two issues indicates that
they are viewed by the departments as having relatively high priority, a
question remains as to the perceived priority assigned to the other issues
listed in the Framework document, and to the ultimate timing of
consultations and proposals for amendments relating to those other issues.

From the perspective of the Canadian Library Association, there are a number of
outstanding issues related to access that ought to be given high priority and
to be placed on the near-term rather than the long-term agenda. Included among
those issues are the applicability of current exceptions for libraries,
archives, museums, and educational institutions in a digital environment, and
access for persons with perceptual disabilities. Indeed, if the
Consultation Paper on Digital Copyright Issues had been less biased in
its scope, and a broader range of current provisions in the Act impacted by the
introduction of digital technologies had been dealt with, those access-related
issues would have been logical candidates for inclusion.

One fundamental issue that is key to public access in a digital environment:
the matter of standard form contracts and the validity of their terms and
conditions with respect to the statutory provisions set out in the Copyright
Act. Shrink wrap, click wrap, and web
wrap licences all have the potential of significantly altering the
balance between copyright owners and users that is reflected in the
Copyright Act, effectively overriding statutory provisions designed to
ensure reasonable access. If balance is to be ensured not just in name but in
reality, that issue has to be dealt with as a matter of priority.

3. Making AvailableDepartmental Proposal:
 The departments hold the view that the Act provides for an on-demand
communication right and therefore do not propose amending the Act with respect
to the rights of authors and their successors at this time.

 The departments propose pursuing a dialogue on introducing an on-demand
communication right to benefit performers and the makers of sound recordings
that would meet the requirements of the WIPO Performances and Phonograms
Treaty (WPPT).

CLA Response:
While the Copyright Act may be construed as embodying an on-demand
communication right within the scope of the right of communication to the
public by telecommunication, as currently defined, it would serve the interests
of clarity and transparency to amend the Act so as to make an on-demand
communication right explicit.

It is also essential to be clear and precise about the relationship between
on-demand communication and communication to the public by telecommunication.
If on-demand communication is to be defined or interpreted in such a way as to
fall wholly and exclusively within the scope of communication to the public by
telecommunication, then by virtue of the definitions in section 2.2 of the Act,
making a work available to the public through on-demand communication would not
in itself entail publication of the work. If, for the purposes of the Act,
making a work available through on-demand communication does not in fact
constitute publication of the work, there are significant implications both as
to the protections provided for that work as well as to the exceptions that
apply to certain uses of the work.

For all intents and purposes, a work made available to the public through
on-demand communication is a published workat least in the ordinary sense
of the word published. Works made available to the public through
the Internet or similar communication networks in an on-demand mode are
generally considered to have been published electronically. To treat such
works as unpublished for purposes of copyright would be inconsistent with the
current realities of digital information and communications technologies.

If an on-demand communication right is to be incorporated into the Copyright
Act, amendments will be required in order to make it clear that on-demand
communication is, for the purposes of the Act, the equivalent of publication.
Such amendments will be required regardless of whether an on-demand
communication right is made explicit through amendment or is made implicit by
confirming an interpretation of the right of communication to the public by
telecommunication that is consistent with the newly defined communication right
in the WIPO Copyright Treaty (WCT).

4. Legal Protection of Technological MeasuresDepartmental Proposal:
The departments have put forward no specific proposal on legal protection of
technological measures. They have expressed an interest in pursuing a broader
dialogue with all copyright stakeholders on the appropriate contours of
copyright in this environment, and in developing approaches that will tangibly
advance the governments public policy objectives and broader reflections
on copyright.

CLA Response:
As an instrument of public policy, the Copyright Act is designed to
establish and maintain an appropriate balance between providing adequate and
effective legal protection to the creators of original works and ensuring
accessibility for the benefit of society as a whole. Copyright provides
creators with a range of rights and redress mechanisms sufficient to protect
their interests in their works, but limited so as to enable reasonable public
access to those works. Limitations on owners rights are reflected in the
formulation and defined scope of the specific statutory provisions associated
with copyright, in the term of protection afforded to various categories of
works, in the definition of non-infringing uses of protected works, in
provisions made for compulsory licensing, and in limitations of liability that
are attached to certain uses.

The introduction to the Copyright Act of sanctions against the
circumvention of technological measures used by copyright owners to protect
their works has the potential of providing copyright owners an unchallenged
means of overriding all limitations on their statutory rights and of denying
users their legitimate rights of access to protected works.

The provisions set out in article 11 of the WIPO Copyright Treaty (WCT)
and article 18 of the WIPO Performances and Phonograms Treaty (WPPT)
oblige contracting parties to provide legal protection and remedies against
circumvention only to the extent that technological measures are used by
copyright owners to restrict uses that are not authorized by the owner or
permitted by law. It can be inferred, therefore, that the obligations of
contracting parties under the WIPO treaties do not extend to the provision of
sanctions that legitimize the use of technological measures by copyright owners
to restrict uses permitted by law.

Introducing sanctions that would make it illegal to manufacture or import
devices that could be used to circumvent technological measures used by
copyright owners to control access to their works would effectively give the
copyright owner unrestricted authority to determine the extent of protection
provided to a work, irrespective of any limitations that might otherwise be
provided for by statute. In effect, the power of the technology available to
the copyright owner would supersede the authority of the Copyright Act.
From a public policy perspective, an outcome of that kind has to be considered
unacceptable.

Formulating sanctions in such a way as to make any act of circumvention an
offence would have the same effect. If users are barred from circumventing
technological measures used by copyright owners to protect their works,
irrespective of the purpose for such circumvention, the copyright owner again
would be in the privileged position of being able to deny the user the
possibility of making use of the work in a manner that by statute would be
deemed a non-infringing use.

As a matter of principle, and in the interests of maintaining appropriate
balance within the CopyrightAct, the Canadian Library
Association takes the position that any sanctions against the circumvention of
technological measures used by copyright owners to protect their works or other
subject matter should apply only in cases where the circumvention is carried
out for purposes of infringement. The corollary to that is that the Act should
include no sanctions against the manufacture or importation of devices capable
of circumventing technological measures, nor against the use of such devices in
cases where circumvention is carried out solely for non-infringing purposes.

For libraries in particular, it is essential that statutory exceptions
pertaining to the management and maintenance of collections and acts performed
on behalf of users engaged in fair dealing continue to be valid even if it is
necessary to circumvent technological protection measures used by copyright
owners.

In addition, exceptions need to be considered to cover cases where
technological measures are used by copyright owners as a mechanism for
infringing the privacy rights of the user.

 To define rights management information consistently with
article 12(2) of the WCT and article 19(2) of the WPPT, noting that protecting
information relating to terms and conditions of use should not be construed as
confirming the legal validity in Canada of such terms and conditions.

 To define rights management information to include
information identifying the work, the author, the first owner of copyright in
the work, and any numbers or codes that represent such information. In
relation to a sound recording, rights management information would
be defined to include information identifying the performer, the performance of
the performer, the maker of the sound recording, the first owner of any right
in the performance or sound recording, and any numbers or codes that represent
such information.

CLA Response:
For purposes of sanctions provided by the Copyright Act, rights
management information cannot be defined simply through reference to the type
of information that it encompasses. Information identifying the work, the
author, the performer, the performance, the maker of the sound recording, and
numbers and codes used to represent such information may be attached to a
copy of a work or appear in connection with the communication of a
work to the public for any number of purposes and may originate from a
wide range of sources. Libraries and other information service providers and
intermediaries provide a number of value-added services that result in
information of the type identified in the proposed definitions of rights
management information being attached to or appearing in connection with the
communication of a work. Examples include cataloguing-in-publication data and
metadata headers used to support resource discovery.

Defining rights management information without reference to the purpose and
source of the information could have the unintended effect of inhibiting
organizations such as libraries and information service providers from
correcting or updating information provided by themselves or their counterparts
for purposes quite distinct from rights management. It could also leave users
of the services of such organizations uncertain as to whether they could alter
or remove any such information attached to copies of works they may be
downloading into their own information management systems.

In the interests of clarity, the proposed definition should stipulate that the
types of information enumerated are protected as rights management information
only when clearly identified as originating with the rights owner or the
owners appointed agent, and specifically identified as having been
recorded for purposes of rights management.

CLA endorses the idea that the Act should also specify that the protection of
rights management information does not imply its legal validity in Canada.
Furthermore, the Act should make it clear that protections applying to rights
management information cease to have effect on expiry of the statutory term of
protection provided to the work, performance, or sound recording.

In addition, exceptions need to be considered to cover cases where rights
management information interferes unreasonably with the authorized display or
reproduction of the work, performance, or sound recording, or where rights
management information is used as a mechanism for infringing the privacy rights
of the user.

6. Liability of Network IntermediariesDepartmental Proposal:
The departments propose establishing a complaints-driven, notice and take-down
process that would be subject to any contractual arrangements entered into by
ISPs with rights holders. The proposal would include provisions for:
 a limitation on liability for copyright infringement when the ISPs
facilities are used by a third party (including clients of the ISP) for
disseminating copyright-protected material;
 a limitation on liability for reproductions of copyrighted materials in
the form of caches that facilitate the communications process where the
original or initial communication is authorized;
 a provision for notice and takedown that would exempt the ISP from
liability for hosting infringing material unless the ISP had received
proper notice from a rights holder or other interested party that
such material was potentially infringing and had failed to block access to the
material within a specified time of having received that notice;
 a limitation on the liability of an ISP for any economic harm resulting
from compliance with the notice and take-down regime
 a requirement that, in order to benefit from any statutory limitation of
liability, the ISP publicly represent itself as providing intermediary services
in an accountable, responsible manner, and establish identifiers on its site
that would enable interested parties to communicate directly with the ISP.CLA Response:
The first question to be addressed with respect to liability of network
intermediaries is one of definition. For the purposes of the Act, the term
network intermediary needs to be defined with sufficient breadth of
scope to encompass all entities providing services that facilitate user access
to networked resources. The definition must include libraries, archives,
museums, and educational institutions providing such services (both for profit
and not-for-profit), as well as the commercially-oriented enterprises commonly
referred to as Internet service providers (ISPs).

Second, a network intermediary should be under no obligation to monitor content
provided by and stored at the request of a user of its services. Likewise, a
network intermediary should be under no obligation to determine whether user
transactions conducted using its services involve infringing activity.

With respect to the departmental proposals on limitation of liability for
network intermediaries, the Canadian Library Association takes the following
position:

 A network intermediary should not be liable for infringing content
supplied by and stored on or communicated through the intermediarys
facilities at the request of a user, provided that the intermediary has no
knowledge of an infringement, is not aware of facts or circumstances from which
infringing activity is apparent, and acts expeditiously to remove or disable
access to allegedly infringing content on receiving notice of alleged
infringement from a rights owner or other party with interests in the
content.

 A network intermediary should not be liable for infringement with
respect to any communication, performance in public, or transient reproduction
of content that is performed in the process of providing connections,
transmitting, routing, or providing access to content that has been made
available on the network by another party (including its clients), provided
that the connection, transmission, routing, or access is initiated by a user,
and the intermediary acts solely as a facilitator.

 A network intermediary should not be liable for infringement with
respect to any temporary reproduction of content that is made automatically in
the process of receiving a communication, or as part of an automatic process
performed for the purpose of making more efficient the onward transmission of
content in response to a request from the recipient, provided that the
intermediary acts solely as a facilitator.

 A network intermediary should not be liable for any economic harm
resulting from compliance with a notice and take-down regime, as set out in the
Copyright Act.

 To qualify for the exemptions from liability set out above, an
intermediary should be required to publicly represent itself as providing
intermediary services in an accountable, responsible manner, and openly display
an address, phone number, etc. that can be used by interested parties for the
purpose of communicating with the intermediary.

Consideration should also be given to limiting the liability of network
intermediaries in connection with any linking mechanisms they might provide in
the form of indexes or other resource discovery tools. Provided that the such
tools contain links only to content that has been made publicly accessible on
the network (or to front pages or gateways that have been made publicly
accessible), the network intermediary should not be liable for any infringement
that may be construed to have taken place through the simple act of making the
link.

The consultation paper also raises a question as to whether issues surrounding
the scope and application of the reproduction right in a digital environment
should be restricted to the question of network intermediary liability. The
Canadian Library Association takes the position that the scope and application
of the reproduction right is fundamental to the broader issue of adapting
Canadas copyright laws to a digital environment. Reproduction (in a
technical sense) is an integral part of digital information and communication
technologies. Not only network intermediaries, but individual users and
organizations providing services other than those involving network
communications invoke reproduction processes routinely as part and parcel of
using digital technologies, in many cases without even being aware or having
any means of knowing that they are doing so. It is essential, therefore, that
the CopyrightAct be amended to differentiate the kind of
transient or temporary reproduction that occurs as an inherent part of using
digital technologies from the more permanent forms of reproduction that have
conventionally been subject to the reproduction right. In particular, the Act
must address the browsing issue, making it permissible for any user
to make a temporary copy or copies in the course viewing a work or performance
on a computer screen, video screen, television monitor, etc., or listening to a
sound recording on a speaker, etc., provided that the work, performance, or
sound recording has been legitimately acquired and/or accessed.